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Showing 101 to 120 of 290 Records
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1990 (3) TMI 205 - CEGAT, CALCUTTA
... ... ... ... ..... s only to decision or order which is the last expression before it or it travels further and qualifies the remoter expression ldquo Every appeal rdquo has to be examined. The latter interpretation will be consistent with the Rule of last antecedent. Further, the expression ldquo among other things rdquo would go to show that even if there are other issues decided along with classification or valuation in an order, an appeal against any part of that order will fall in the jurisdiction of the Special Bench. In this case, the impugned order was mainly concerned with valuation of goods and recovery of differential duty. Incidentally, a penalty was imposed on the present appellants for a licensing irregularity. We feel that for the reasons cited by us above, this appeal also has to be heard by the Special Bench. We, therefore, direct the Registry to transfer this appeal to Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi for disposal by the concerned Special Bench.
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1990 (3) TMI 204 - CEGAT, MADRAS
Filter assembly and elements being hydraulic filters ... ... ... ... ..... the conditions laid down in the said Policy - Sl. No. Description of Item Entry No. and Appendix No. of ITC Policy/Remarks 1. Hydraulic Filters App. 6, List 8, Part I, Entry at Sl. No. 756 of current ITC Policy 7. I further find that under Bill of Entry No. 015308 dated 11-5-88 and Bill of Entry No. 008472 dated 14-12-1987, identical goods imported by the same appellant for the earlier period namely 1985-88 and governed by Import Policy AM 1985-88 have been allowed by the Customs Authorities at Madras for clearance under OGL. In this connection it would be relevant to point out that the wording in the licensing policy in regard to the goods for the year 1985-88 and the wording in the policy in respect of the same goods for the year 1988-91 Policy are identical verbatim. Therefore, on consideration of the above materials I am inclined to hold that the goods are permissible for import under OGL and in this view of the matter, I set aside the impugned order and allow the appeal.
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1990 (3) TMI 203 - CEGAT, BOMBAY
Refund - Limitation ... ... ... ... ..... . The show cause notice dated 17-12-1980 issued in this case is, in the circumstances, premature. rdquo 10. From the above it is observed that Special Bench lsquo A rsquo did not go into the question of limitation. It only held that the notice is premature. In view of the aforesaid position, we are not able to take a different view from the legal position as laid down under Sec. 11B, which we have discussed elaborately earlier. In view of this, we are also unable to take a view that the assessment in this case was provisional so that the relevant date could be taken as a date other than the date of payment of duty. Since the duty has also not been paid under protest, the appellants rsquo claim for refund cannot be saved from the limitation prescribed under Sec. 11B. We, therefore, have no other option but to reject the appeals, since the authorities functioning under the statute cannot relax the time-limit set down in the statute. 11. In the result, the appeals are dismissed.
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1990 (3) TMI 202 - CEGAT, MADRAS
Refund on re-entry or return of goods ... ... ... ... ..... s the petitioner did not in any manner change the class of the goods brought back in their factory. The Government of India, therefore, observes that Rule l73L(3) does not apply in this case. One brand of cigarette is not a class of goods separate from the other brand. In fact the Tariff Item does not distinguish between one brand and another. rdquo 6. We observe that inasmuch as the appellants have manufactured tea of one variety out of the input of another variety it has to be held in the context of the above discussion and the case laws cited supra that the Dust Tea on processing has been re-made into another variety of tea yet the re-made goods belong to the same class though satisfying the requirements of Rule 173L. We, therefore, hold that appellants are entitled to the benefit of Rule 173L and they are entitled to the refund subject to the other conditions regarding account etc. as set out in the said Rule being satisfied. The appeal is thus allowed in the above terms.
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1990 (3) TMI 201 - CEGAT, NEW DELHI
Import - Assemblies and sub-assemblies ... ... ... ... ..... f such appraisal preferably by an outsider. 25. As a result we dismiss the appeal in so far as the validity of the licence is concerned but allow it on the question of valuation. The value of the cover glass should be re-examined by Customs. 26. As a consequence, keeping in mind that the appeal has been allowed in respect of valuation, we order as follows (a) In appeal No. C/621/87-A the fine in lieu of confiscation is reduced to Rupees three lakhs and the penalty to Rs. Thirty seven thousand and five hundred only. (b) In appeal No. C/622/87-A the fine is reduced to Rs. Eleven lakhs fifty thousand and the penalty is Rupees One lakh fifty thousand only. (c) In appeal No. C/623/87-A, the fine is reduced to Rs. Three lakhs and the penalty to Rs. Eighteen thousand five hundred only. (d) In appeal No. C/624/87-A the fine is reduced to Rupees Eleven lakhs twenty-five thousand and the penalty to Rs. One lakh fifty thousand only. 27. The appeals are allowed partly in the above terms.
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1990 (3) TMI 200 - CEGAT, CALCUTTA
Confiscation ... ... ... ... ..... above principles to the facts of this case it is clear that the mere fact that the goods were foreign in origin is not sufficient to hold that they are smuggled goods. The circumstances that the consignee firm was fictitious and that the appellants could not name the broker, may at best create suspicion against the appellants. Suspicion however strong, cannot take the place of proof. The Department has not discharged the initial burden cast on the Department. On the facts and circumstances of this case we hold that the burden is not shifted on the appellants to prove that these are not smuggled goods. We also hold that the mere fact that the goods are foreign in origin is not sufficient to hold that they are smuggled goods. In such circumstances, the impugned order-in-appeal is liable to be reversed. Accordingly, these two appeals are allowed and the impugned order as far as appellants are concerned are set aside and the appellants are entitled for the consequential reliefs.
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1990 (3) TMI 199 - CEGAT, CALCUTTA
Refund claim - Limitation ... ... ... ... ..... he Assistant Collector and filed in the office of the Superintendent should be held sufficient to meet the requirement. Such an act and the fact that the jurisdictional Range Superintendent entertained the application and passed it on to the office of the Assistant Collector has to be held to be tantamount to making the application to the Assistant Collector. In view of the preponderance of these decisions, we have no hesitation in rejecting the stand taken by the Appellant Collector. We accordingly dismiss the appeal and direct that the jurisdictional Assistant Collector should implement the direction given by the Collector (Appeals) in his order dated 21-11-1984 and grant the consequential benefits due to the present respondents within a period of three months from the date of receipt of this order, this being a matter relating to payment of duty made more than ten years back and the Order-in-Appeal by the Collector (Appeals) itself having been passed nearly six years back.
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1990 (3) TMI 198 - CEGAT, CALCUTTA
Recovery of sums due to Govt. by adjustment with the amount refundable ... ... ... ... ..... is letter dated 2-8-1984 addressed to the appellants, referred to the amounts due from them on account of the demands raised in the RT 12s listed therein, for which he had observed, they had not produced any stay order. This, coupled with the admitted position before the Collector (Appeals) that their dispute was sub judice in the revision stage, would go to show that the present case is quite different from the Rasoi case relied upon by Shri Mookherjee. In that case, as we had noted earlier, no notice had been issued before the adjustment of the dues from the refund amount which is not the case here. The non-obtaining of a stay order and the pendency of the Revision Application puts the present matter in a different perspective legitimising the action taken by the Assistant Collector, which has also been correctly upheld by the Collector Appeals. In the circumstances, we Sec no reason to interfere with the order-in-appeal under challenge and, accordingly, dismiss the appeal.
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1990 (3) TMI 197 - CEGAT, BOMBAY
Appeal by Department against the order of refund ... ... ... ... ..... fours to the present case, as there also this very Finance Act, 1984 was being interpreted. 9. Under the circumstances, it is clear that the Collector of Customs (Appeals) was clearly in error in taking the view that the appeal was hit by the provision of limitation. The provisions applicable are the pre-amended provisions which prescribed the period of limitation as two years, and undisputedly, the present appeal is filed within the said stipulated period of two years. 10. The order of the Collector of Customs (Appeals) therefore, cannot be sustained and is hereby set aside. 11. The Collector of Customs (Appeals) has not considered the appeal on merits, and hence the same is ordered to be remanded to the Collector of Customs (Appeals) for disposal of the same on merits according to law. As the claim for refund is of the year 1979, the Collector of Customs (Appeals) should give priority, and dispose of the appeal within six months from the date of communication of this order.
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1990 (3) TMI 196 - CEGAT, MADRAS
MODVAT credit not transferable to other unit of same manufacturer ... ... ... ... ..... d entitle the appellant to the benefit of the said exemption notification available to the oil manufacturers. But the notification in that case provides for the exemption in respect of utilisation of the rice bran oil for the manufacture of the other oil. The Scheme of the MODVAT, however, is differently worded and has to be given effect to in terms of the various rules as legislated and, as pointed out above, there is no provision in the Rules for either transfer of the MODVAT credit from one unit to the other and also for clearance of an intermediate product which may be exempt from payment of duty to another unit of the manufacturer where the same will be utilised in the finished specified goods. In view of the above discussion, we hold that the appellants are not entitled to the benefit of the MOD VAT credit in respect of the inputs utilised in the manufacture of Alkyd Resins cleared without payment of duty from the appellants rsquo unit and, therefore, reject the appeal.
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1990 (3) TMI 195 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... are of the opinion that in the present case also, the imported consignment, in question, could be classified under definition of ordinary portland cement. 16. We have noted the arguments of the ld. D.R. that the use of white cement is different than ordinary portland cement but then as is evident from Entry 23(1), apart from portland cement, various other varieties of cement are included therein, namely, masonry cement, rapid hardening cement, low heat cement and water proof (hydrophobic) cement. The revenue has not contended that all these varieties have the same use. So, in our view, the aspect that the white cement has different use could not have any bearing upon the classification. 17. In view of the above discussion, we are of the opinion that the imported consignment, in question, should have been classified under T.I. 23(1) of the erstwhile First Schedule of the CESA. So, we allow this appeal and set aside the impugned order with consequential relief to the appellant.
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1990 (3) TMI 194 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... red or preserved goods ordinarily intended for sale with pre-determined quantity. Normally these goods are in standard packs (it may be bottles, cans, cardboard, cartons etc.) and are prominently labelled to show the nature of the contents, the quantity, the date of manufacture and date of expiry (where applicable), the maker rsquo s name, the recommended maximum retail price etc. These aspects have been dealt in detail in the case of M/s. HPMC cited supra and we hold that there is no difference either in the entry in between 1B of the old Tariff and new tariff 2001.10 or in the issue involved in both the cases. Following the ratio of the decision in the case of M/s. HPMC we hold that clearance in barrels does not amount to sale of the contents as put in a unit container. Accordingly, the goods in question are not classifiable under sub-heading 2001.10 but they are classifiable under sub-heading 2001.90. 10. In the result we set aside the impugned order and appeal is allowed.
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1990 (3) TMI 193 - CEGAT, CALCUTTA
Stay/Dispensation of prior deposit of duty and penalty ... ... ... ... ..... so only lays down that the exemption contained therein shall be applicable only to a factory which is an undertaking registered with the Director of Industries as a small scale industry. It was clarified by Sri Banerjee that for a new industry, initially only a provisional registration certificate is issued in that area, and subsequently, a regular registration is issued. In that view of the matter, we feel that the applicants have a prima facie case which would justify the grant of stay prayed for and we, accordingly, grant the stay prayed for. 4. Since the appeal relates to the admissiblity of the exempted rate available in terms of the exempted Notification No. 175/86 which has been disallowed by the departmental authorities who have held that the statutory rate is applicable, the matter comes within the purview of the Special Bench of the Tribunal. Therefore, we direct the Registry to transfer the appeal to the Cegat, New Delhi for disposal by the concerned Special Bench.
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1990 (3) TMI 192 - CEGAT, NEW DELHI
... ... ... ... ..... rove that value shown in the invoice was not the real value. This charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like kind goods. The Department has not brought any such contemporaneous evidence on record. On the other hand, the respondent has placed sufficient evidence to show that several other imports by third parties including Govt. of India Undertaking i.e., I.T.D.C. for the same price which was charged to IPC without its intervention. When there is sufficient evidence to show that independent imports are existing and price in respect of these imports are available, the Department was not justified in resorting to Section 14(1) (b) read with Valuation Rules in determining the value of the imported goods. In the view we have taken, we hold that price shown in the invoice was the correct value at which the goods were ordinarily sold or offered for sale. 14. In the result we uphold the impugned order and dismiss the appeal.
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1990 (3) TMI 191 - CEGAT, NEW DELHI
Two adjudication orders in respect of same goods passed ... ... ... ... ..... wed to be made it at all and by passing a non-speaking order ex-parte the learned Addl. Collector had indeed violated all the norms of established law and procedure. 56. We further note that since the learned Addl. Collector has adjudicated the matter with reference to both the consignments taking together the quantity and value of the goods contained in both the consignments (including the one already adjudicated upon) and imposed penalty keeping in mind their total quantity and value even otherwise it was not possible to segregate or separately assign or appropriate the penalty to anyone of the consignments at this stage and the imposition of composite penalty cannot be upheld. 57. In view of the above position, we feel that there has been non-application of mind and the action of the department suffers from serious infirmities and the order is bad in law ex-facto. 58. As such without going into the merits of the case, we set aside the penalty imposed on all the appellants.
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1990 (3) TMI 190 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... t or Rules made thereunder. Relevant extract from para No. 8 of the Supreme Court judgment appearing on page 201 has already been reproduced above. 10. In view of the above discussion and the judgment of the Supreme Court, we hold that in the present matter there was no material from which it could be inferred or established that there was any fraud, collusion or any mis-statement or suppression of facts on the part of the appellant. Accordingly, we are of the view that the extended period of limitation cannot be invoked in this case and we hold that the demand is hit by limitation. 11. In the result, we set aside the impugned order and quash the imposition of penalty of Rs. 10,000.00 (Rupees ten thousand only) and hold that the goods are classifiable under T.I. 27(3) of the Central Excise Tariff and the benefit of Notification No. 183/84-CE dated 1st August, 1984 should be extended to the appellant. Revenue authorities are directed to give consequential effect to this order.
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1990 (3) TMI 189 - CEGAT, NEW DELHI
... ... ... ... ..... ges them out. This procedure ensures uniformity, speed and certainty which are all essential characteristics of a good Tax. Therefore, the practice of the Customs in adopting this method (uniformity in terms of percentage) cannot be found fault with if the overall interests as well of the importers and the country are kept in mind. Besides, value under Section 14 being a lsquo deemed rsquo value, we find nothing illegal in the practice. 13. We have made these observations because the appellants rsquo pleas suggested directly or indirectly, that there is something arbitrary especially in adding the landing charges to CIF value under the present system. We had already observed that the claims made by the appellants cannot be sustained for want of evidence. We see no provision in Customs Act to support their claims. Therefore, both on first principles and in the facts and circumstances of this case, we Find no merit in these appeals. 14. We, therefore, dismiss all these appeals.
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1990 (3) TMI 188 - CEGAT, NEW DELHI
Manufacture - Filler Wire ... ... ... ... ..... in the impugned order. 5. We have gone through the records of the case. We have also considered the arguments of the learned advocate and have gone through the judgments/decisions relied on by him. Following the ratio laid down by the aforesaid judgments/decisions, we hold that the processes of straightening the stainless steel wire and cutting the same into required sizes do not amount to manufacture within the meaning of Section 2(f) of the Central Excises and Salt Act, 1944 as no new product emerge as a result of the processes. The stainless steel wires remain stainless steel wire after processing. The change in their form does not bring about a new product although the appellants gave a local name lsquo Filler Wire rsquo to the straightened and cut stainless steel wire. Since there was no manufacture under Section 2(f) ibid, no Central Excise duty was chargeable on the Filler Wire under Tariff Item 68. 6. The impugned order is, therefore, set aside and the appeal allowed.
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1990 (3) TMI 187 - CEGAT, DELHI
‘Wool Tops’ and ‘Cashmere Tops’ ... ... ... ... ..... ance but it has to be given a meaning in the context in which this word has been used in the ITC Schedule as well as in the List of Restricted Items of Import. It is also necessary to decide whether the word lsquo marble rsquo as stated in the ITC Schedule refers to only marble or includes travertine, ecaussine, alabaster and other calcareous monumental or building stones and can be termed as marble in the commercial sense or in trade nomenclature so as to bring the same within the restricted Item No. 62 of Appendix 2 of the Import and Export Policy for April 1988 - March 1991. We have already slated hereinbefore that in the List of Restricted Items under Item No. 62 only marble has been mentioned and not the other stones including calcareous stone used for building or monumental purposes which have been left out. Therefore, per se it may be difficult to say that marble includes the other calcareous stones mentioned in the ITC Schedule . 6. Hence the order as in para 4 above.
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1990 (3) TMI 186 - CEGAT, NEW DELHI
Value of clearances ... ... ... ... ..... rder and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order. 10. It is true that the effect of this interpretation would be that under the repealed Section 35A(2), the Collector could have reviewed such order within one year wherein under the provisions of this new Section 35E(2), the Collector could direct the subordinate officer to prefer the application to Collector (Appeals) within two years, but there is no illegality and it does not jeopardise interest of the appellant in any manner whatsoever. So, we are unable to accept the contention of the appellant that the appeals, preferred before the Collector (Appeals), were void being time barred. 11. In view of our above findings, these appeals require to be rejected. So, we pass the following final order These appeals Nos. E/2474/87-C to E/2477/87-C are dismissed.
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